Ruling Opens Avenue To Repealing Obamacare

COMMENTARY

A protester makes his feelings known outside the U.S. Supreme Court building… (Getty Images )

July 06, 2012|By RED JAHNCKE | COMMENTARY, The Hartford Courant

Obamacare was finally ushered into existence by an arcane procedural maneuver in Congress called "reconciliation." If Republicans prevail in November, this "landmark" legislation will perish by the very same method.

As Democrats drink champagne and marvel at a victory delivered by the unlikely vote of Chief Justice John Roberts, a Republican appointee, they overlook the import of the legal basis upon which Roberts made his decision. The court found the individual mandate, specifically the fine for defying the mandate, to be a tax, a characterization Democrats avoided at time of passage for atmospheric reasons. Democrats did not want to be pegged once again as the "tax and spend" party.

Well, reconciliation can only be used on pure budgetary matters, spending and revenue (tax) items. With the mandate now definitively designated a tax, reconciliation can clearly be employed to repeal it.

Why reconciliation? It is the only way to bypass the Senate's 60-vote hurdle to end filibusters used to kill legislation by delaying it indefinitely — a bulwark that Democrats would otherwise use to derail attempts to repeal Obamacare, aka the Affordable Care Act.

Reconciliation is a complex and tortuous process, but it requires only 51 Senate votes. So, now, repeal of the mandate is clearly within reach. And so is repeal of the rest of the law.

As the Obama administration argued before the court, without the mandate, two other key provisions of the law become unworkable, specifically that health insurers issue policies to people with prior conditions and that they vary policy pricing only by age. Indeed, during oral argument before the court in March, the Obama administration asked the court to strike these two provisions if it decided to overturn the mandate. So, how could Democrats fight with any credibility to keep these two provisions after repeal of the mandate via reconciliation?

Furthermore, while all attention has been focused upon the mandate that all individuals must purchase health insurance, another central feature of the law is the corporate mandate, the requirement that businesses offer comprehensive health coverage to employees — or pay a fine. By the court's logic, that fine has also been defined clearly as a tax.

Although these features of Obamacare are the most significant, once you examine the rest of the Affordable Care Act, you find that one provision after another is essentially a spending or a revenue measure. All can be eliminated under reconciliation.

So, opponents of Obamacare, take heart. Although the attempt to overturn the law in the courts has failed, the prospects for repealing it in Congress were enhanced by the court's decision. But taking heart is not enough — opponents must redouble efforts to elect Republicans to the White House, the Senate and the House. Without control of all three, repeal is impossible, and realistically, after 2013, the law will become too entrenched ever to be repealed.

Proponents of the health care law, take solace. Most opponents are not "just say no" obstructionists. Many support common-sense elements of the Affordable Care Act. For example, most favor the policy now in place to cover young people by allowing them to remain on their parents' policies until age 26. Please note that this popular feature of Obamacare is functioning perfectly well without the rest of the law.

And most opponents really do have alternative proposals, including to cover those with prior conditions by a method not requiring the individual mandate: high-risk insurance pools, which existed in 35 states long before the passage of Obamacare. And, get this: under the act, a whole new set of supplementary federally funded, high-risk pools were launched almost two years ago in all 50 states. So, obviously, Democrats see the viability of this alternative approach to pre-existing conditions. And these new pools are operating without any reliance upon the rest of the law. Scheduled to expire in 2014 under the act, these pools could be made permanent.

So, no one should proceed under the misimpression that there are not legitimate alternatives to Obamacare or that opponents wouldn't keep common-sense elements of the act or, most important of all, that step-by-step evolutionary change is not possible.

The battle over Obamacare is not over. Repeal is eminently possible. And repeal would not be regressive, but would lead to more modest, common-sense solutions, ones which would improve health care without such an intrusive assault on personal liberty, without such stultifying bureaucratization of the practice of medicine and without bankrupting the nation in the process.

Red Jahncke is president of The Townsend Group International, a business consulting firm in Greenwich. He can be reached at RTJahncke@Gmail.com.